The author assesses the role of consent in processes of binding dispute resolution before international courts and tribunals. He seeks to demonstrate that ‘consent’ has a particular role in binding dispute resolution. This particular role derives from the special nature of binding dispute resolution processes. They are intrusive and characterized by their uncertain outcome: the implications of State consent to the dispute resolution process crucially depend on decisions of an independent entity, namely an international court or tribunal. Because this is so, States insist on the need for consent, as a precondition of any binding dispute resolution process. At the same time, once consent has been given, control shifts to the competent international court or tribunal. Moreover, by virtue of their decision-making authority, many international courts and tribunals have managed to assert at least a persuasive influence over proper construction of the legal rules at stake, extending beyond the cases immediately pending before them. The chapter traces these peculiarities and examines how the tension between State and courts’ authority plays out in particular disputes.

The traditional regime regulating international fisheries appears inadequate at ensuring the rule of law, since many States are unwilling or unable to respect their relevant obligations. This chapter examines the potential of using litigation to increase compliance with existing norms in the field of fisheries, in particular, to address issues with flag States, coastal States, and States involved in the fishing of shared stocks. This research finds that recourse to international courts and tribunals is an option that should be considered by States, in that it could bring an end to specific violations, hence tackling the most egregious cases of non-compliance, as well as enabling clarification of certain obligations, especially by way of advisory opinions. Nonetheless, it must be recognized that litigation has severe limitations, especially in that it is a costly endeavour, both in political and monetary terms, hence destined to remain a rare occurrence. Also, litigation can only successfully address non-compliance due to lack of willingness, leaving unsolved the large(r) problem of lack of capacity. Hence, while litigation may certainly have a role to play in the field of fisheries, other mechanisms, in particular, regular, objective and comprehensive compliance procedures, should also be developed and/or strengthened.

This chapter begins with a brief overview of the UNCLOS dispute settlement system established under Part XV UNCLOS. It then provides a conceptual framework for understanding what is meant by ‘development of the law’ by international courts and tribunals in order to set the stage for an analysis of the development of the law of the sea in the subsequent chapters. The chapter suggests a working definition of the term ‘development of the law’ and explains the ways in which international courts and tribunals ‘develop the law’. In the course of doing so, the chapter also explores the role of legal reasoning in the assessment of the contribution of judicial decisions to the development of international law.

Although judicial bureaucracies are the backbone of international courts and tribunals, their presence remains largely unacknowledged in official discourse and scholarly analysis. This chapter takes collective silence as an object of interest and explores its socio-political dimensions. The role of judicial bureaucrats is an open secret. Courts, government representatives, counsel, and academics are all aware of it, and yet conspire to keep it invisible to the public. The chapter reflects on the reasons behind the conspiracy of silence. Could it be due to the confidential nature of judicial proceedings? To the need to preserve the legitimacy of judicial institutions in the eyes of their audiences? Or, perhaps, to the instinctive desire of international lawyers to maintain an aura of mystery and sanctity around their profession?

This chapter starts to dig into the role of judicial bureaucrats as consiglieri of the court. In particular, it focuses on the memoranda they prepare to advise the adjudicators throughout the proceedings. While these internal documents go by different names and take different forms in each court, they tend to share some common features: typically, they describe and characterize the state conduct that gave rise to the case; review the facts and evidence on the record; evaluate the viability of the parties’ legal claims and defences; compile relevant case law; and provide suggestions on how the issues in dispute should be resolved. Through the preparation of memoranda, judicial bureaucrats often run a full pre-assessment of the case, thereby exerting considerable influence on the decision horizon of the adjudicators.

This chapter flashes back to the first days of Sophie’s employment at the ICJ registry, and sees her and her girlfriend Norma mull over the socio-professional features of the international judicial community. The chapter lays the theoretical foundations of the book and provides the reader with pointers to interpret the unfolding of judicial proceedings. The international judicial community has a twofold structure, at once cooperative and competitive. On the one hand, its members work together to secure control on courts and tribunals and insulate their internal activities from outside interference. On the other hand, community members ceaselessly strive to maximize their relative capital in a ruthless struggle for authority and prestige. The practices of the community are patterned, as they present regularities over time; they are competent, as they rest on collective background knowledge; and they weave together the discursive and the material world. Thus, community practices are the vehicle of both continuity and change, constraint and freedom in international adjudication.

The law of responsibility has been subject to massive change over the past centuries. While in key areas such change is well-established in the form of customary law or general principles, for particular transformations the process of change is more difficult to pin down. Major examples are the transition from a private to a public law model and from independent to shared responsibility, where the depth and scope of change and its support in practice remains uncertain. The author argues that the normal rules for determination of change in international law, reflected in the sources of international law, are not always helpful for determining change in the law of responsibility. To understand such change, it is helpful to distinguish change in secondary rules from change in primary rules (substantive rights and obligations) and tertiary rules (procedures and institutional rules for implementing responsibility). Change in the law of responsibility is to some extent driven by prior changes in primary rules, but it is also argued that secondary rules have a logic and justification that is to some extent independent from primary rules.

This chapter is a reflection in broad brushstrokes on the differences between three interconnected judicial operations: interpretation of customary rules, identification of customary rules and treaty interpretation. While identification of customary rules and treaty interpretation have been explored in and out, interpretation of customary rules is a recent addition to the thread of under-researched and complex topics in international law. Firstly, this contribution explores the concept of interpretation of customary international law and presents the arguments in favour of the amenability of customary law to interpretation. Secondly, it distinguishes between interpretation of customary rules and interpretation of state practice and explains why the two operations must be differentiated. Thirdly, the chapter presents examples of interpretation of customary international law in the practice of international courts and tribunals and argues why it is important that the distinct nature of custom and treaties as sources of law are acknowledged in the exercise of interpretation.

Customary international law is one of the formal sources of international law and plays a pivotal role in the existence and functioning of the international legal system. Although for a rule of CIL to emerge a widespread, representative, constant and virtually uniform state practice is required, accompanied by the requisite opinio juris, that does not necessarily mean that CIL is a slow and archaic process, which has been overcome by extensive treaty-making. On the contrary, CIL remains a vital element in the corpus of international law that is open to refinement, clarification, development and evolution. This process does not happen only through the classical emergence and/or subsequent modification of the rule, but also and perhaps most importantly through the process of interpretation. This chapter demonstrates this by showing that CIL interpretation is neither problematic from a theoretical perspective, nor is it the only example of interpretation of unwritten rules. This is further reinforced by jurisprudence taken from both the domestic and the international legal system, although such interpretative exercises are not without their limits. What emerges from this analysis is that CIL interpretation, as Sur has beautifully noted, is of a negentropic nature that constantly nourishes and updates CIL.

This chapter argues there is a “pull” toward cross-fertilization on procedural questions, meaning cross-fertilization between international courts and tribunals may be more likely for procedural issues than in substantive law. It describes cross-fertilization in relation to procedural issues. Procedural cross-fertilization is a process and is not just about borrowing by adjudicators, but involves contributions by a range of actors. Three considerations facilitate procedural cross-fertilization and even make it somewhat likely: the discretion of adjudicators on procedural issues, adjudicators’ duty to decide numerous procedural issues, and sociological considerations concerning the circulation of a small number of personnel across multiple fora. However, two considerations counterbalance adjudicators’ broad discretion. On one hand, control mechanisms operated by states push adjudicators to remain faithful to their mandates, limiting the space for procedural cross-fertilization. On the other hand, procedural cross-fertilization feeds and is fed by an emerging model of international due process that is affecting all areas of international adjudication.

This chapter offers a new framework for theorizing about the roles of different types of actors who participate in processes of cross-fertilization. All of these actors have complex or mixed motives: while actors may place some value on the coherence of the international legal system, they weigh such systemic concerns against other, more immediate concerns. International judges, for example, may place value on the coherence of the international legal system, but they may place greater emphasis on the autonomy of their own specialized or regional legal order, on the normative values of that order and on their own authority within that order. Other actors, by contrast, may place little or no value on international legal coherence, but favor or oppose cross-fertilization as a function of its effect on the their likelihood of prevailing in a dispute. In a world of complex actor preferences, the process of cross-fertilization is likely to resemble, not a consensual process of management, but a constant struggle among a wide variety of actors, some of whom will champion cross-fertilization while others seek to prevent or limit it.

This introduction reviews scholarship on international legal fragmentation, lays out a framework for understanding international judicial cross-fertilization, and previews the contributions and their findings. Existing scholarship on international legal fragmentation, we argue, has moved through three phases over the past several decades. In the first, legal scholars and practitioners reacted with alarm to the judicial proliferation of the post–Cold War years, which they feared would create overlapping jurisdiction and conflicting interpretations of law. Following this period, the new century saw the pendulum swing toward a second, more optimistic picture in which international courts addressed fragmentation through “management” techniques, producing unity in international law. We can detect the opening salvos of a third wave, as skeptics have questioned the management account, pointing to the mixed motives of international judges and the limits of cross-fertilization. In this volume, we build on the existing literature by theorizing the actors of cross-fertilization and their motives, and by distinguishing between procedural and substantive cross-fertilization.

As has been widely acknowledged and documented, there has been an impressive increase in interstate litigation over the past decade. More than ever, international courts and tribunals are being regularly engaged by a wide array of states, from north and south, seeking peaceful and authoritative resolution of their disputes. These disputes include disparate subject-matters including but not limited to armed conflict, land and maritime border disputes, territorial sovereignty, global trade, human rights, diplomatic relations and consular affairs. This surge of interstate litigation needs to coincide with an increase in academic attention to the field. Questions such as how the courts and tribunals function, who the arbitrators and judges that decide cases are, which rules of independence and impartiality apply to them, and why a certain method of dispute settlement is preferred, have now become more relevant than ever. An ample collection of rules and decisions now exists to permit such comparative studies. Surprisingly however, little attention has so far been given to the procedure before the various courts and tribunals dealing with interstate disputes from a comparative perspective. While important works have been published on the rules and procedure of specific courts and tribunals, notably the ICJ the ITLOS and the WTO DSU, engagement with the rules and procedure applicable in interstate litigation from a comparative perspective has received little attention.

Two cases that touch on the rights and obligations of States in disputed maritime areas, which have been rendered prior to the entry into force of the LOSC, are Aegean Sea Continental Shelf (Interim Measures) and Guinea-Bissau v. Senegal. After the LOSC became binding on the States parties thereto, the scope and content of Articles 74(3) and 83(3) LOSC were dealt with in Guyana v. Suriname, with both sides to the dispute alleging breaches of the two obligations contained therein. Two more recent cases are Ghana/Côte d’Ivoire and Somalia v. Kenya. Here, the States concerned faced several difficulties because of activities having been undertaken unilaterally within their disputed areas. In the maritime boundary dispute between Ghana and Cȏte d’Ivoire, both the judgment and the interim measures order given by the Special Chamber elaborate on the lawfulness of acts that were unilaterally undertaken by Ghana in their disputed maritime area. The chapter also addresses how the case law relating to the indication of interim measures of protection has an influence on disputed maritime areas, and the rights and obligations that States have in this regard.